Burt v. Lustig

Three results followed the assignment to Alvin Burt. First. He became the owner of the judgment, and of all securities for its payment, the latter as incidents following the principal, Thomas v. Hubbell, 35 N. Y., 120; Bowdoin v. Colman, 6 Duer, 182; Jackson v. Losee, 4 Sandf. Ch., 381; Morange v. Mudge, 6 Abb., 243; Campbell v. Birch, 60 N. Y., 214. Second. He became entitled to continue the action for his own benefit in the names of the original plaintiffs, Code, § 756; Bolen v. Crosby, 49 N. Y., 183. Third. He became liable for the costs as the party for whose benefit the action was thereafter *191prosecuted, Code § 3247. In other words, for all practical purposes the assignee became the plaintiff, although not so appearing on the record. The defendants, by executing the undertaking to the Court of Appeals, stayed its collection by the owner, Mr. Burt. This was an injury to him alone, and not to the nominal plaintiffs of record, Snodgrass v. Krenkle, 49 How., 122. The sureties on the undertaking were bound to pay only the lawful owner of the judgment, irrespective of form or title, Wehle v. Spellman, 75 N. Y., 585.

The right of action on the undertaking passed to Alvin Burt, as assignee, and it became vested in his administratrix after his death. The title of the administratrix was sufficiently proved. The general assignment made by T. Brooks & Company’s successors, offered in evidence by the defendants, was not pleaded by way of defence, nor did the defendants claim that the assignee named therein made any claim to the moneys demanded or was a necessary party to the action.. The judgment was recovered by the plaintiffs several months after the general assignment was made, and its admission at the trial proved nothing germane to the issues to. be there determined. The verdict was properly directed, and the exceptions taken are without merit. It follows that the exceptions must be overruled, and the plaintiff permitted to enter judgment on the verdict, with costs.

Freedman, P. J., and Gildersleeve, J., concurred.